Sofia Vergara’s Fertility Fight: Dohan Law’s Perspective

As seen in CNBC

Russell Dohan, partner at Goldberg & Dohan

“Modern Family” star Sofia Vergara is being sued by ex-fiancé Nick Loeb to prevent her from destroying their frozen embryos — two female embryos the pair had conceived through in vitro fertilization while they were engaged.

The question is: Does Loeb really have a case?

The suit, filed in California, states John Doe (Loeb) “seeks to ensure that the Female Embryos are not destroyed, but Jane Doe [Vergara] refuses to agree to their preservation under all circumstances.”

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Let’s get something straight: A right to an embryo is determined by a written agreement (contract) between the parties, including potential mother, father and the reproductive center. The agreement with the center is called an informed consent, and includes a provision specific to a directive regarding storage and disposition of donated materials, such as sperm, eggs and fertilized embryos. These are known generally as advanced directives. State law governs what items need to be in the informed consent/advance directive, but leaves it up to the parties to make the choice as to which directive to choose.

In the case of Loeb/Vergara, the facility’s informed consent had a provision that was agreed to by Loeb, which he signed, that if either party died, the embryo would be destroyed (by thawing). However, and surprisingly, it did not give the parties a choice as to disposal of the embryo if the parties separated.

The CA Health and Safety Code, 125315(3) states:

In the event of separation or divorce of the partners, the embryos shall be disposed of by one of the following actions:

(A) Made available to the female partner.

(B) Made available to the male partner.

(C) Donation for research purposes.

(D) Thawed with no further action taken.

(E) Donation to another couple or individual.

(F) Other disposition that is clearly stated.

This choice was not given to them. No lawyer for either or both of them reviewed the agreement. It does not appear that Loeb wants to actually have ownership of the embryo under (B) right now. He is not asking for that and he could never win that unilaterally anyway. Rather, he wants to revoke his decision and agreement to have the embryo thawed if Vergara died. He is trying to accomplish this by saying that the agreement should be revoked because he was under duress at the time he signed it. This will be a tough battle. He claims that the duress occurred because she was yelling at him at that moment and had abused him in the past. Basically, he wants ownership of the embryos in the event of her death (is he banking on her dying sometime soon?) in accordance with the allegations of his complaint.

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Let’s just think: What is his real motive here? He filed the complaint as a John vs. Jane Doe, but did he really think no one would figure out who it really was? I just can’t figure it out other than to air her dirty laundry in the court of public opinion.

The lawsuit alleges Vergara was abusive during their four-year relationship, saying she was “on many occasions, physically, emotionally and mentally abusive” toward Loeb. Court papers say she “punched him in the face on two occasions, kicked him, and threw her phone at his head.”

Do he really think these allegations truly rise to the level of duress and that this alleged “abuse” strengthens his case?

In the end, if this case actually makes it before a jury, I will be surprised. The judge will kick this lawsuit out of court way before that. Some have suggested that Vergara donate the embryos, which is a possibility. Would that make Loeb happy, though, or would he fight that move as well? It’s hard to tell, given the craziness of this lawsuit.

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Commentary by Russell Dohan, a partner at the law firm Goldberg & Dohan. He specializes in personal injury and insurance claims. He also enjoys poker. Follow him on Twitter @radpoker.